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  • NousDefions794
    replied
    Originally posted by rdytobustsum1 View Post
    CBP stated that I am not considered a "veteran" as per the definition. I am a disabled veteran with a Service Connected Disability of 30% or more. I have been awarded numerous medals for different campaigns. CBP still argues that I am not a veteran with preference eligibility.
    You can call the VA and request a letter stating your disability rating of 30% or more to use as establishing civil service preference.

    Leave a comment:


  • kc12
    replied
    rdytobustsum1--I think where CBP is coming from is, if I recall correctly, once you have used you vets preference for employment it can not be used again to move from one position to another, while still employed with the government. I could be incorrect though, good luck with your appeal.

    Leave a comment:


  • SHU
    replied
    As long as the old guys meet the same exact physical standards as the young guys, I don't have a problem with it.

    Leave a comment:


  • rdytobustsum1
    replied
    I contributed to the CBP Military Service deposit but CBP states that this time may not be used towards the 37 year age requirement.

    CONGRESSIONAL RECORD—SENATE SEC. 1.109 states the following.

    CREDITING EXPERIENCE IN
    APPOINTMENTS TO COVERED POSITIONS
    When considering applicants for covered positions in which experience is an element of qualification, employing offices shall provide preference eligibles with credit:
    (a) for time spent in the military service
    (1) as an extension of time spent in the position in which the applicant was employed immediately before his/her entrance into the military service, or
    (2) on the basis of actual duties performed in the military service, or
    (3) as a combination of both methods. Employing offices shall credit time spent in the military service according to the method that will be of most benefit to the preference eligible.
    (b) for all experience material to the position for which the applicant is being considered, including experience gained in religious, civic, welfare, service, and organizational activities, regardless of whether he/she received pay therefor.
    SEC. 1.110 WAIVER OF PHYSICAL REQUIREMENTS
    IN APPOINTMENTS TO COVERED POSITIONS
    (a) Subject to (c) below, if an employing office determines, on the basis of evidence before it, that an applicant for a covered position is preference eligible, the employing office shall waive in determining whether the preference eligible applicant is qualified for appointment to the position:
    (1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position;
    and
    (2) physical requirements if, in the opinion of the employing office, on the basis of evidence before it, including any recommendation of an accredited physician submitted by the preference eligible, the preference eligible is physically able to perform efficiently the duties of the position;
    (b) Subject to (c) below, if an employing office determines that, on the basis of evidence before it, an otherwise qualified applicant who is a preference eligible described in 5 U.S.C. § 2108(3)(c) who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the covered position, the employing office shall notify the preference eligible of the reasons for the determination and of the right to respond and to submit additional information to the employing office, within 15 days of the date of the notification. Should the preference eligible make a timely response the employing office, at the highest level within the employing office, shall render a final determination of the physical ability of the preference eligible to perform the duties of the position, taking into account the response and any additional information provided by the preference eligible. When the employing office has completed its review of the proposed disqualification

    Leave a comment:


  • rdytobustsum1
    replied
    I have been trying to be reinstated to a CBP GS-11 position. There are positions currently being announced in USAJOBS for pre-clearance in Canada. These positions state that if you were previously with CBP during the past 5 years then you may apply. When you fill out the positions questionnare it ask for the following:

    Veterans under the VEOA qualify for positions listed for Interagency Career Transition Assistance Plan (ICTAP).

    Assessment Questionnaire 1.
    What attracted you to apply? (Choose one only please)

    2. Select the statement that best describes your Federal employment status.

    B. I am NOT a current U.S. Customs and Border Protection employee with competitive status.

    3. Will you be less than 37 years of age at the closing date of this announcement?
    D. No

    If you chose response A in the previous question, provide your date of birth. If you chose response B or C, provide the dates of your federal civilian law enforcement experience (from MM/DD/YY to MM/DD/YY).

    4. Have you served or are you currently serving as a full-time permanent GS-11 with Customs and Border Protection?
    A. Yes

    5. All applicants who are NOT CURRENTLY in the 1895 series must have been in the series within the last five years to be eligible for this announcement. Are you currently or have you been in the 1895 series within the last five years?
    A. I am NOT currently in the 1895 series; however I have been in the 1895 series within the last five years.

    If you answered A or B to the question above, please provide the dates you were in the 1895 series. If you answered C to the question above, please indicate "not applicable".

    Customs and Border Protection Officer GS-1895-11 From 09/23/2003 To:04/27/2008

    6. Conviction of a misdemeanor crime of domestic violence, as outlined in the vacancy announcement, is disqualifying. A misdemeanor crime of domestic violence is any offense involving the use of physical force, or the threatened use of a deadly weapon, committed by a current or former domestic partner, parent, or guardian of the victim. Have you ever been convicted of a misdemeanor crime of domestic violence?
    B. NO

    7. Do you have a current valid State driver's license or will you be able to obtain a valid license within three months before entering this position?
    A. Yes

    8. Have you previously held an overseas position with Customs and Border Protection?
    B. No

    If you answered A to the question above, please provide the position title, location, and dates you held this overseas position. If you answered B, please indicate "not applicable".
    Not applicable

    9. If you are a Federal employee, is your most recent performance rating equivalent to a "pass," "satisfactory," or better?
    A. Yes


    Still, CBP still argues that I am not being denied because of veterans preference but because I exceed the 37 year of age requirement.

    Leave a comment:


  • GreenLine
    replied
    CBP stated that I am not considered a "veteran" as per the definition. I am a disabled veteran with a Service Connected Disability of 30% or more. I have been awarded numerous medals for different campaigns. CBP still argues that I am not a veteran with preference eligibility.
    I have no idea how that can conceivably claim that - unless you're trying to be reinstated as a CBP officer as a GS-12, because I think VEOA only applies up to GS-11 and only for people coming from outside an agency (I have applied for jobs in my own agency above a 12 and don't get any VEOA consideration).

    Otherwise, sounds like you have a legitimate beef.

    Leave a comment:


  • rdytobustsum1
    replied
    Mspb Appeal

    Here is my problem.

    I was employed with DHS/CBP from 09/2003 up to 4/2008I applied for a position with DHS/CIS as an Adjudication Officer with promotion potential to a GS-12 and was hired on 4/2008. A couple months ago, on October 23, 2008, more than 30 days before my 37th birthday, I submitted a request to be reinstated as a CBP Officer GS 1895. CBP delayed my reinstatement request by not routing it through the proper channels. In other words, they sat on it. CBP now claims that my request was submitted after my 37th birthday. Therefore, my request was denied because I exceeded the maximum age requirement under the new 12(d) coverage.

    Before my request, there was an officer who was with CBP before joining CIS. Well, the officer submitted her reinstatement request before me. The officer was previously a CBP Supervisorbefore she joined CIS, which is considered a Secondary Position. The CBP Supervisor was also the spouse of my previous CBP Supervisor. She also exceeded the 37 years of age requirement.

    Well, I challenged Custom and Border Protection concerning my VEOA violation as a preference eligible. I submitted my Acknowledgement Order on 12/29/2008. I received my Second Order to Show Cause on February 19, 2009 in which it stated that the Board might have jurisdiction over my appeal. On March 2, 2009, the MSPB judge stated that the Board has jurisdiction over my appeal.

    So, today the judge requested further evidence to prove that there is a violation of my preference eligible rights under the VEOA.

    I cited Isabelle v. Department of State but CBP stated that the applicant in this precedent decision was applying through a Vacancy announcement. The representative claims that my appeal is different because I currently occupy a position within the Federal Government. CBP claims that there does not exist an age waiver which applies to my reinstatement request.

    CBP claims that, at the time of my appeal, there was no job offer by the agency nor did I apply through a job announcement. Although, I submitted my reinstatement request as instructed, CBP states that after they requested that I submit the necessary documents on 12/4/2008 I had already exceeded the age requirement.

    CBP stated that I am not considered a "veteran" as per the definition. I am a disabled veteran with a Service Connected Disability of 30% or more. I have been awarded numerous medals for different campaigns. CBP still argues that I am not a veteran with preference eligibility.

    Leave a comment:


  • justdoitking
    replied
    DOL and Veterans

    I think you will find all of the statues codified at the 5 section covering veterans is under the authority of OPM that directs veterans to DOL. if you have a question maybe contact them for guidance.

    Also, if you have a Veterans preference problem you have just 60 days to file a complaint with DOL and than you must allow for them to conclude their administrative action before going to the MSPB.

    http://www.dol.gov/vets/aboutvets/contacts/main.htm

    A recent case decision highlights this fact.

    http://www.mspb.gov/netsearch/viewdo...cation=ACROBAT

    As it is obvious under the new administration veterans will get more rights. but unless we have a Crystal ball we will have to wait and see how some of the recent court cases pan out.

    Also the decision about the age limit has come from a real court. They remand the decisions back tot he MSPB for implementation.

    Leave a comment:


  • kc12
    replied
    Originally posted by SA13 View Post
    I know I said I was done, but I'll hop back in to point out a few things being skipped in this discussion. Primarily actual legal precedents on this matter, from REAL courts, not the MSPB:

    From the 11th Circuit Court of Appeals: http://bulk.resource.org/courts.gov/...-.89-3614.html

    From the 6th Circuit:
    http://www.altlaw.org/v1/cases/503616

    http://caselaw.lp.findlaw.com/cgi-bi...ase&no=980181p
    From what I could tell the first two cases do not apply. As DSSHopeful stated the plaintiffs weren't vets.

    The last case is a bit more interesting. The applicant asserts her veteran's preference rights were violated. The court did not make a ruling on the issue of veterans preference, stating it did not have jurisdiction. This means no decision was granted with consideration to the applicant's veterans preference. The case was heard in April 1998 and the decision was rendered in June 1998. In October 1998 the Veterans Employment Opportunities Act was passed. In the VEOA the procedures for filing a complaint for a presumed violation of any veterans preference are outlined. These procedures had not been address prior to the passage of the VEOA. This legislation gave the MSPB and the courts the jurisdiction to hear the case.

    Leave a comment:


  • DSS Hopeful
    replied
    Originally posted by SA13 View Post
    I know I said I was done, but I'll hop back in to point out a few things being skipped in this discussion. Primarily actual legal precedents on this matter, from REAL courts, not the MSPB:

    From the 11th Circuit Court of Appeals: http://bulk.resource.org/courts.gov/...-.89-3614.html

    From the 6th Circuit:
    http://www.altlaw.org/v1/cases/503616

    http://caselaw.lp.findlaw.com/cgi-bi...ase&no=980181p
    Dude I don't think any of these cases are pertinent to the argument at hand because (mind you I just briefly glanced) I don't see where any of these individuals were veterans.

    Leave a comment:


  • SA13
    replied
    I know I said I was done, but I'll hop back in to point out a few things being skipped in this discussion. Primarily actual legal precedents on this matter, from REAL courts, not the MSPB:

    From the 11th Circuit Court of Appeals: http://bulk.resource.org/courts.gov/...-.89-3614.html

    From the 6th Circuit:
    http://www.altlaw.org/v1/cases/503616

    http://caselaw.lp.findlaw.com/cgi-bi...ase&no=980181p

    Leave a comment:


  • kc12
    replied
    After citing many cases and providing instruction the Board went on to describe the appropriate method of applying the two laws by saying:

    "Here, sections 3307 and 3312 are easily reconciled on the plain language. If an applicant’s age exceeds an age limit authorized by § 3307(d) or (e), then the hiring authority must determine whether the applicant is preference eligible. If the answer is no, then a maximum entry age fixed pursuant to 5 U.S.C. § 3307(d) or (e) bars the non-preference eligible candidate from having his application processed. On the other hand, if the applicant is preference eligible, then the hiring authority must make an additional determination: Is the age limit “essential to the performance of the duties of the position?” 5 U.S.C. § 3312(a)(1). If the answer is yes, the application cannot be processed; if the answer is no, then the age limit must be waived for the preference eligible applicant pursuant to § 3312. Thus, § 3312 does not render § 3307(d) or (e) superfluous. The waiver provision only applies to a small class of applicants -- preference eligibles who are older than the maximum entry age -- and only under specific circumstances -- where the age limit is not essential to the duties of the position."

    All of these opinions of the Board obviously can be overturned, however with the extensive citing of SCOTUS I doubt any court would over rule the decision of the board.

    I believe I read somewhere that in an instance where there is conflict with regards to hiring a person for a federal employment the decision will be to the applicant's benefit. I'll be researching this also and post anything I can find.
    Last edited by kc12; 12-31-2008, 08:40 AM.

    Leave a comment:


  • kc12
    replied
    Found it. Title 5 USC SEC 3307 states:
    "(a) Except as provided in subsections (b), (c), (d), (e), and (f) of this section appropriated funds may not be used to pay an employee who establishes a maximum-age requirement for entrance into the competitive service.
    (b) The Secretary may, with the concurrence of such agent as the President may designate, determine and fix the maximum limit of age within which an original appointment to a position as an air traffic controller may be made.
    (c) The Secretary of the Interior may determine and fix the minimum and maximum limits of age within which original appointments to the United States Park Police may be made.
    (d) The head of any agency may determine and fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331 (20) and (21), respectively, of this title.
    (e) The head of an agency may determine and fix the maximum age limit for an original appointment to a position as a firefighter or law enforcement officer, as defined by section 8401 (14) or (17), respectively, of this title.
    (f) The Secretary of Energy may determine and fix the maximum age limit for an original appointment to a position as a nuclear materials courier, as defined by section 8331 (27) or 8401 (33). "

    The MSPB addresses this issue with:

    "The appellant responds that there is no evidence that Congress, in enacting § 3307, intended to override or repeal “a right that had been granted decades earlier to the fighting men and women of this country.” RF, Tab 12 at 9-10. The appellant argues that the provisions can be reconciled “by construing § 3307(d) and (e) to apply to all law enforcement officer positions except where the applicant is a preference eligible, in which case § 3307(d) and (e) are waived, unless the maximum age entry requirement is essential to the performance of the
    duties of the position for which application has been made.” Id. at 5. We agree with the appellant’s statutory interpretation. It can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change."

    The board goes on to describe when a later statute can repeal an earlier one, by citing decisions of the SCOTUS, and stipulates these statutes do not meet the requirements (as outlined by the SCOTUS). This decision can obviously be reversed if appealed, but I thought I read somewhere that OPM was not appealing the decision of the Board.
    Last edited by kc12; 12-31-2008, 08:38 AM.

    Leave a comment:


  • GreenLine
    replied
    The details of 6c are under Title 5 USC, section 8412(d). That reference in and of itself bears explanation. The law, under the old Civil service Retirement System, was known collectively as "6c" for the section it was found under (8336(c)). When the Federal Employee Retirement System came into being and CSRS was no longer offered, the same law was "moved" to where it is now. Same law, different reference, so I guess it's technically "12d" retirement, but we all still call it "6c". Just more confusion for an already-confusing topic.

    You should be able to find the details under either of those references. 12d would be more current, but again, it's the identical law with a different listing locations.

    Something interesting is a timeline of how LE retirement came into being - just a summary of what each law was meant so do and not the statutes, verbatim, but the references are there for the laws that were enacted in case anyone wants to look them up.

    http://www.doi.gov/training/flert/milh.html

    Leave a comment:


  • kc12
    replied
    Greenline--I've looked, but can't find the law about the maximum entry age, only job announcements relating to maximum entry age being tied to the mandatory retirement. Where is it in the statutes about the maximum entry age? You've stated several times the maximum entry age is in the law as well as the mandatory retirement age. I think your argument would hold a lot more weight if you could post a link or post the law.
    Last edited by kc12; 12-30-2008, 03:42 PM.

    Leave a comment:

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